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Wage & Hour FAQs

Is my employer required to pay minimum wage or overtime?

If your employer is subject to the federal Fair Labor Standards Act (FLSA), he/she is required to pay a minimum wage of $5.85 per hour effective July 24, 2007.  It will then rise again to $6.55 per hour effective July 24, 2008 and $7.25 per hour effective July 24, 2009.  Additionally, overtime of time and a half for any hours worked over forty during the work week.  Employers are subject to FLSA if the enterprise has employees engaged in interstate commerce or in the production of goods for interstate commerce and generates annual gross volume of sales more than $500,000.  School, hospitals and health care facilities, and public agencies are subject to FLSA.  If you have questions about whether your employer is subject to FLSA, please contact the U.S. Department of Labor, Wage & Hour Division in Indianapolis at (317) 226-6801, or in South Bend at (574)236-8331.

If your employer is not subject to FLSA, he/she is required to pay state minimum wage.  The minimum wage in Indiana as of July 24, 2007 is $5.85 per hour.  It will then rise again to $6.55 per hour effective July 24, 2008 and $7.25 per hour effective July 24, 2009.  Indiana employers not subject to the FLSA (i.e. small business) must pay overtime of time and a half for any hours worked over forty during the work week.

When do I need a common construction wage scale?

An awarding governmental agency, using any public funds (excluding federal dollars), constructing a public work (any building, highway, street, bridge, sewer or other improvement), where the construction costs are estimated to be $150,000 or more, must request a committee hearing to set a wage scale.  Such committee meetings can be scheduled by submitting a request letter to the Indiana Department of Labor, Wage and Hour Division.

When will my Common Construction Wage Hearings meeting be scheduled?

The Indiana Department of Labor has established a “Once-a-Month” schedule for Common Construction Wage Hearings.  Each county in the state meets on a specific, recurring day each month.  For more information about this schedule, please download the Once-a-Month Schedule.

What is the minimum wage in Indiana?

Currently $5.85 per hour.  On July 24, 2008, it will be $6.55 per hour.  On July 24, 2009, it will be $7.25 per hour.  These amounts apply whether you are governed by federal law or Indiana law.  Only those employers with a single employee are exempt from paying minimum wage.

Who do I contact for a “County Taxpayer Appointee?”

The “County Taxpayer Appointee” on the requesting letter should be named by the legislative body of the county in which the project will take place (Board of Commissioners.).  This taxpayer should reside in the project county, and should pay taxes that will be used toward the project itself.  A list of contact information can be found here.

Do I need to set Common Construction Wages for a project that receives federal funding?

Unless expressly written in an agreement with the United States Department of Labor, projects using federal funding are not subject to Common Construction Wage.  The federal “Davis-Bacon” scale may take precedence.  Per IC 5-16-7-1, wages cannot be enforced by the Indiana Department of Labor on these projects.  Please consult your counsel.

If one of our committee members is absent, can we still hold a meeting?

Yes.  As long as a quorum is reached, the committee can determine wages.  A quorum for a five-person Common Construction Wage committee is 3 or more members.

When does a Common Construction Wage Scale expire?

The Indiana Department of Labor considers an adopted wage scale valid for 12 consecutive months after adoption.  If the scope of the project has changed or the project bids are not awarded within twelve consecutive months, then a new wage committee should be formed and a new wage scale should be adopted.

Do we have to adopt one scale over another, or can we blend them?

It is perfectly legal to blend two scales together, as long as there is evidence to support the wages and fringes being adopted.

How can I get a copy of the adopted wage scale?

The Awarding Agency should retain a copy of the adopted wage scale for their records, and should be able to provide a copy to you.  Also, the Department of Labor has established a website that contains a Wage Scale search.
The address is:  http://www.in.gov/dol/2881.htm.

My project is all locally and state funded, but is valued under $150,000.  Do I need to set Common Construction Wages?

No.  Per IC 5-16-7-1, Common Construction Wage does not apply to projects under $150,000 in value.  They are not legally enforceable and should not be established.

Wages were set on this project less than 12 months ago, but we’ve added a piece to the construction.  Do we need to set wages again?

Yes.  If the scope of the project has changed, a new committee should be formed and wages should be re-established.

Who do we contact with questions concerning the Common Construction Wage process?

The Common Construction Wage Hearing officers can be reached at the Indiana Department of Labor Wage and Hour Division by calling (317) 232-2655.

We only need 2 or 3 different classifications of labor on this project.  Will we have to adopt wages for all of the classifications presented on the scale?

No.  Only those classifications used on the project will receive pay from the scale.  The Indiana Department of Labor would recommend adopting a complete scale, just in case an unforeseen problem would arise.

Why does the Governor’s Representative typically abstain in the final vote?

Except in a tie, the Governor’s Representative will abstain in the final vote to adopt a wage scale.  The Indiana Department of Labor’s role on the committee is to provide information to the members concerning Common Construction Wage law, departmental interpretation and enforceability of the scale, and statutory requirements that must be met at the committee level.  It is the goal of the Indiana Department of Labor to remain neutral and allow the local representatives to make the final determination.

Why does Indiana have a Common Construction Wage?

Common Construction Wages are set to ensure that the government’s huge buying power and the competition to win public works contracts do not drive down the salaries paid to the labor required to perform those projects.

Who makes sure that workers are getting paid according to the adopted scale?

The Indiana Department of Labor has an audit process in place.  For questions about the audit process, please contact our audit department at (317) 232-2655.

My organization wants to compile a Common Construction Wage scale to present to a committee. What data, by law, must a wage scale contain?

Anyone wishing to present a wage scale at a Common Construction Wage hearing may do so, however there are a few statutory and legal requirements that must be met.  In brief, the scales must be surveyed wages and fringes being paid in the project county.  These wages and fringes should have supporting evidence to show that they are actually being paid.  Per IC 5-16-7-1, a Skilled, Semiskilled, and Unskilled rate must be provided for each classification of labor presented.  Later case law (Union Township School Corporation v. State of Indiana) also defines that an hourly “Fringe Benefit” should be adopted for each skill level, and that the wages must be configured using the mode.  For more information concerning wage scale format, please call: (317) 232-2655 or click here.

Are Common Construction Wage Hearings open to the public?

Yes.  Common Construction Wage Hearings are public meetings and are subject to Indiana’s Open Door law.

How long does a Common Construction Wage Hearing last?

Every Common Construction Wage Hearing is unique.  It is difficult to predict how long the meeting itself will take.  Internally, the Indiana Department of Labor allots one hour for each meeting.  Many fall well short of this, perhaps only fifteen to twenty minutes.  Some may last longer than an hour.  Again, it is difficult to predict.

My county adopted wages earlier this year for a different project.  Can we use those wages for another project, or do we need to set another scale?

Common Construction Wage scales are adopted on a project-by-project basis.  Each qualifying public works project will require a separate wage scale.

Can my employer terminate me for no reason?

Indiana is considered an "employment at-will" state. This means that Indiana employers may hire, fire, promote, demote, layoff, suspend, set their own work hours and policies at their discretion; so long as there is no contract of collective bargaining agreement and they do not discriminate against their employees because of their age, sex, race, religion, national origin, or disability.

When I leave my employment, is my former employer required to pay me for any accrued vacation time?

Yes.  Accrued vacation pay is considered a form of compensation.  Upon leaving employment, vacation pay is additional wages, earned weekly, where only the time of payment is deferred. As a result, an employee is entitled to a pro rata share of his/her accrued vacation at the time of termination.
However, if there is a company personnel policy or employment contract which states certain conditions under which accrued vacation pay will be given upon termination, the employee must meet those conditions in order to receive their accrued vacation pay.  These policies are at the discretion of the employer, but must be presented to the employee in writing prior to the ending of employment.

What do I do if my employer does not pay me?

If you are not paid by your employer please view the Application for Wage Investigation.  You may then fill out this application and mail it to the address in the upper right hand corner.  Please be advised that the Indiana Department of Labor can only pursue claims of more than thirty dollars ($30.00) and less than six thousand dollars ($6,000.00).

Is my employer required to give me time off for lunch or breaks?

If you are over 18 years of age, Indiana law does not require your employer to give time off for lunch or breaks. If you are under 18 years of age, Indiana law requires your employer to provide you either one or two rest breaks totaling 30-minutes when you are scheduled to work six or more consecutive hours.

Can my employer terminate me while on Worker’s Compensation?

Yes.  Indiana is considered an "employment at-will" state. This means that Indiana employers may hire, fire, promote, demote, layoff, suspend, set their own work hours and policies at their discretion; so long as there is no contract of collective bargaining agreement and they do not discriminate against their employees because of their age, sex, race, religion, national origin, or disability.  If you have further questions about rights under Worker’s Compensation please contact the Worker’s Compensation Board at (317) 232-3808.

Should I quit or be fired, when is my last paycheck due?

Your paycheck is due by midnight of your next regularly scheduled pay day.

Can an employer fine an employee and take it out of his or her paycheck?

No. An employer is not permitted under Indiana law to fine an employee and deduct the amount from his/her pay.

What if I am fired even though I had a doctor's slip?

Although Indiana is an employment-at-will state, the federal Family and Medical Leave Act offers some protection for employees taking time off for illness. If you have questions concerning Family and Medical Leave and whether it applies, please contact the U.S. Department of Labor, Wage & Hour Division in Indianapolis at (317) 226-6801 or South Bend at (574) 236-8331.

Can I do anything about untrue statements that my former employer has made about me to a potential employer?

Indiana has a Blacklisting law which permits employers to disclose only truthful facts about an employee's termination. If you believe your former employer has made untrue statements about you, you must request copies of any written correspondence from a former employer to a potential employer within 30 days of applying for a job with the potential employer.  The Indiana Department of Labor has no jurisdiction to investigate such claims.  It is suggested that you consult a private attorney about any possible legal action that could be taken.

Does my employer have to pay me for mandatory meetings?

Yes. An employer must compensate employees for time spent on the job when the employee is subject to the employer's control and direction.

If I am overpaid, can my employer deduct the amount of the overpayment from my paycheck?

Indiana law permits employers to deduct the amount of overpayment from an employee's paycheck. However, the employer must notify you in advance and may only deduct up to 25 percent of your disposable income each pay period.

Must my employer pay me for sick days, personal days and holidays?

No.  Indiana law only requires that employers must pay employees for actual time worked. As a result, employers are not required to pay for sick days, personal days, or holidays.

Can my employer mandate how I use my vacation time?

Yes.  Vacation time is seen as a fringe benefit and is up to the discretion of the employer.

How do I know if I worked as an employee or an independent contractor?

You are an employee if your employer supervises your work, sets your hours and provides you with the necessary equipment to do your work. An independent contractor is not supervised, works at his/her own discretion, and supplies his/her own tools.

When can my employer make deductions from my paycheck?

Indiana law requires three conditions to be met in order for a wage deduction to be valid. First, the agreement for the deduction must be in writing, signed by the employee, by its terms revocable at any time by the employee upon written notice, and agreed to in writing by the employer. Second, a copy of the deduction agreement must be delivered to the employer within ten days of its execution. Third, only certain categories of deductions are allowed, including: premiums on an insurance policy; contributions to a charitable organization; purchase price of bonds, securities or stock of the employing company; labor union dues; purchase price of merchandise sold by the employer to the employee; amount of loan made to the employee by the employer; contributions of the employee to a hospital service or medical expense plan; and payment to an employee's direct deposit account. 

If you believe your employer has made a deduction that does not fall within this criteria please view the Application for Wage Investigation.  You may then fill out this application and mail it to the address in the upper right hand corner.  Please be advised that the Indiana Department of Labor can only pursue claims of more than thirty dollars ($30.00) and less than six thousand dollars ($6,000.00).

If I am a waiter or waitress and earn tips, is my employer still required to pay me minimum wage?

All tipped employees should be paid at least the minimum wage. The employer is required to pay a base hourly wage of $2.13 an hour. If the employee is not compensated at a rate equal to the minimum wage after adding any tips he/she received to the base hourly wage of $2.13 an hour, the employer must pay the employee the difference. If the employee earns more than the minimum wage after adding the tips he/she received to the hourly wage of $2.13 an hour, the employer has fulfilled his/her obligation. A tipped employee means any employee engaged in an occupation in which he/she customarily and regularly receives more than $30 a month in tips.

Can an employer require an electronic direct deposit?

Yes.  Indiana Code § 22-2-5-1(a) states, “Every person, firm, corporation, limited liability company, or association, their trustees, lessees, or receivers appointed by any court, doing business in Indiana, shall pay each employee at least semimonthly or biweekly, if requested, the amount due the employee. The payment shall be made in lawful money of the United States, by negotiable check, draft, or money order, or by electronic transfer to the financial institution designated by the employee. Any contract in violation of this subsection is void.”

Can an employer fire an employee for not participating in direct deposit?

Should an employee be terminated because she/he refused to participate in an electronic transfer program, the Indiana Department of Labor has no authority to take action. Whether the employee would have recourse through private action in the state courts is questionable. Generally, employment relationships in Indiana which are not governed by a written contract are “at-will,” which means any party can end the relationship for any reason. However, the courts have created certain exceptions to that doctrine based on “public policy.” An employee who wishes to explore whether or not that doctrine would provide him or her with protection from such action should consult with his or her personal attorney.

Do I have to be paid for "on-call" time?

Generally, you are only required to be paid for time while you are under the direction and control of your employer. An employee who is required to remain "on-call" at home, or who is allowed to leave a message where he/she can be reached, is not considered to be working while "on-call." However, an employee who is required to remain "on-call" on the employer's premises is considered to be working while "on-call."

Can my employer deduct the cost of uniforms from my paycheck?

Indiana law does not allow employers to deduct the cost of mandatory uniforms from an employee's paycheck. However, it does allow employers to deduct the purchase price of merchandise sold by the employer to an employee if it is at the request of the employee. With this said, if the uniform is optional and the employee makes a written request for the deduction, the cost may be deducted from the employees wages.

May an employer provide pay statements to its employees electronically?

Yes.  Indiana Code § 22-2-2-8 requires employers to provide employees with statements of their hours worked, wages paid, and deductions listed. However, the method of provision is not specified. Therefore, in and of itself, an electronic method would not violate Indiana’s wage and hour statutes. However, certain criteria must be met.

The information provided to the employees must include a list of any and all deductions taken out of each payment, in addition to the hours worked and wages earned. The employer must make the information readily accessible. To guarantee compliance with Indiana’s wage and hour laws, it is imperative that the employees have access to the company’s computers and printers on company time. It is the employer’s obligation to provide the employees with the requisite wage and hour statements.

Regarding accessibility, Indiana law also requires all employers to be able to provide the commissioner of labor, or any of his agents, with those records. Such records, by statute, shall be open to inspection by the commissioner at any reasonable time.

Provided that the employees’ statements include the required information - wages earned, hours worked, and deductions - and provided that the employer continues to keep the records accessible both for all employees, and for the Department’s review, an employer would remain in compliance with Indiana’s labor laws regarding payment statements.